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QLD New Swimming Pool Installation - Contract Variation?

Discussion in 'Australian Consumer Law Forum' started by Michelleg, 23 July 2014.

  1. Michelleg

    Michelleg Active Member

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    Good evening...I have a question....I have a contract for a pool. The plans we submitted for quotation was for a 14m direct swim line....all quotes were based on this plan. It is a freeform pool.

    The salesman, when he did the diagram in the contract, put the length measurement from the furthest ends of the pool, which does not create a 14m direct swim line (it's around 12-12.5m). They dug the pool on 19/5. My husband queried the length on that day, however, they were insistent they were digging to the contract (which in fact they were, due to the incorrect labelling of it).

    They came out on 20/5 to reinforce ready for concreting, however I was insistent it was not what we had been quoted on....I understand we all signed off on the contract and that's the problem. After a ton of phone calls that morning, their people on the ground said that 'the boss had taken care of it, they were trying to find an excavator to come out and remedy it to our specifications as per our original quotes, and he had provided his credit card to pay for it'.

    The owner during conversations with him prior to this had said it would need to be sorted out with the salesman. The salesman has said to me on several occasions that he advised the owner that the pool would need to be lengthened as per our quotation and he wasn't sure what had gong on. I have spoken to their office at least once a week since (sometimes more) and it has never been mentioned. In fact, I had a phone conversation with the Liz in the office the week of 28/6 while I was in Sydney and she said that we could not progress to pebblecreting until the remainder of the filtration invoice was paid (there was a dispute regarding the condition of the delivered filter). She said they would not progress while there were funds owing. She also advised a new filter was being delivered on handover...based on this we made payment and in fact the filter has since been delivered and connected....so at this stage we are thinking we are good to go with the final stage and handover....how wrong we were.

    We arrived home on the night of 14/7 to find an invoice for $851 for additional excavation and $365 for a variation we had had written into the contract. The $365 had been paid upfront and they have since remedied their records when I pointed this out. The $851 however is now in dispute and despite emails to them, we are not getting a response and we are being told to talk to the salesman and he committed to call back and hasn't.

    My point is that this appears to be a variation, we never were advised we were going to be charged (in fact we were led to believe that the company had accepted the fact that an error had been made by the salesman), let alone how much and it is now 2 months later before they have provided us with an invoice. The invoice that was provided had no detail attached and it was only when I emailed them that night querying it that the owner came back to me with copies of the relevant invoice and an explanation of the overhead charges and what they related to.

    Are we liable for this bill under the Australian Consumer Law?
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi Michelle,

    Just to clarify:

    You submitted plans for a 14m pool for quotation. You were given a price and you decided to go ahead with the building of this pool with the company. However, the company drafted a plan of the pool which was inserted into the contract with an incorrect length (ie. not 14m). Neither you nor the company picked up on this mistake and you signed the contract and build began. Later, you realised the mistake and asked the contractors to vary the length of the pool. You were under the understanding that the costs for the variation would be born by the contractors and not yourselves. You are now being charged $851.00 as a variation fee. Is this correct?

    Further, can you answer the following questions:

    - Do you have any written paperwork or evidence to support the fact that you asked for a 14m plan of particular specifications?
    - Are any of the subsequent conversations supported by written emails or your own notes?
    - Does the contract have an express provision specifying the length of the pool? If so, doe it say 14m? If not, how does it refer to the length of the pool?
    - Is there any particular reason as to why the length of the pool needs to be 14m (ie. is it for a particular purpose)? If so, did you tell the contractors this when entering into the contract?
    - Did the contractors (or their sales representatives) say or do anything that gave you the representation that they would bear the costs of the variation? Do you have any of this representation in writing?

    If you are a consumer, meaning: if you bought the pool for personal and private use, then you may call the Office of Fair Trading in Queensland. They can give you some advice as to what they would expect you and the contractors to do in this situation and may be able to assist you and the contractors in coming to some reasonable resolution. They are a free service that assists in resolving disputes between consumers and businesses (that offer goods and services) as well as a place for providing information and preliminary advice.

    You can contact them here: http://www.fairtrading.qld.gov.au/about-us/contact-us

    It appears that you have attempted to resolve the matter with the contractors directly and have not been getting a response. In this case, the Office of Fair Trading should be able to assist you, or at the very least, assist in getting the contractors to contact you back and respond to your emails.
     
    DennisD likes this.
  3. Michelleg

    Michelleg Active Member

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    Hi Sarah
    Please see responses below......

    Correct.

    On the day of the initial dig it was queried by my husband and then everything unfolded the following day.

    they have not referred to it as a variation fee. The invoice refers to excavation costs, supervision and overheads.

    absolutely - there are emails between us and the salesman - including plans and quotations from the company.

    the emails querying the $851 charge when we received it and subsequent responses - yes. Prior to that - no although both my husband and I were onsite at the time.

    next to the diagram of the pool there is a measurement line and it extends to the wrong part of the pool, making it an indirect swim line of 14m e.g. you would need to swim through the ground to get the length.

    no particular reason other than it was the design that was done for us by someone else and we liked it, we also have the land size to support it and it balances the area out. We have always had conversations with the salesman about wanting a 14m direct swim line and also about how shortening it really didn't reduce the cost overly much e.g. 2m shorter was around $2k cheaper.

    Their contractor onsite said that the boss was organising an excavator and had provided his credit card details to foot the bill, the salesman also said that he had spoken to the boss and advised him that it would need to fixed to make the customer happy and there must have been a mistake (he even said this again when I spoke to him last Friday)...that's how we left it with them on that day. Nothing was ever provided in writing, nor did they advise us of the cost until 2 months later when they sent this invoice.

    I will give this a go tomorrow, thanks.
     
  4. John R

    John R Well-Known Member

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    Hi @Michelleg,
    This was an interesting question - How'd you go with the Office of Fair Trading?
     
  5. Michelleg

    Michelleg Active Member

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    We have been talking via SPASA QLD but that broke down late on Friday. I will be lodging with Fair Trading on Monday morning. Failing that we will also be asking SPASA QLD for moderation. Pool builder is saying that our response is a pack of lies...funny thing is that I have it all documented so am not sure where he is coming from. Tried to talk to him directly Friday afternoon but he was bullying and intimidating and then used copious amounts of profanity and hung up on me.....great service. Sure couldn't recommend them in a fit, and they are a BIG company here in QLD.
     
  6. John R

    John R Well-Known Member

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    Hi @Michelleg,
    It sounds like you're in the heat of the battle. Keep your call and keep taking take detailed notes of all correspondence.
    In an ideal world, the Office of Fair Trading will be able to assist you. If not, the Queensland Civil and Administrative Tribunal (QCAT) is the likely next stop.

    Good luck and keep us updated with your progress.
     
  7. Michelleg

    Michelleg Active Member

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    So, SPASA QLD tried to book mediation and the pool company has pulled out today and said that it won't get anywhere and we need to lodge with QCAT - said they would lodge by weeks end....problem with that is that it is going to take 4-5 weeks just to get a hearing date....looks like they are just trying to draw it out. Office of Fair Trading really want to talk to them now but again only offer a mediation service so probably not worth progressing.

    Next call was to QBCC who have said they will try and contact him to organise mediation, but have also confirmed that there is no such thing as a verbal variation (no surprise there - I already knew that) and that we need to lodge with them to attempt mediation and also lodge a complaint as he can be charged with an offence regarding not following variation procedure as set out in the Act.

    Whilst I would dearly love to do that it is only going to antagonise him further....will hold that ace up my sleeve until this all plays out and then will progress that option. In the interim we can lodge with QCAT ourselves and force his hand....cannot understand why he wants to go down this path given he clearly has caused a variation - has no authority at all from us to incur the charges and then didn't provide anything to us for 2 months....what am I missing here?

    So my question now is - can we pay the bill to the pool builder, get the work completed and then take them to QCAT to recover the funds? At least then we have a completed pool......any help would be appreciated.
     
  8. SarahD

    SarahD Member

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    Hi Michelle,

    I would love to know how you went with this. We are having a very similar issue with a SPASA QLD builder.
     
  9. Michelleg

    Michelleg Active Member

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    We ended up with QBCC...

    We technically won :) We were in the right - able to produce multiple emails and plans with the measurements. Ultimately though, it comes down to it being a SPASA contract and them having to gain approval for variations (unless they are as a result of an emergency).

    They never advised of a cost on the day and took 2 months to finally send us a bill... all paid legal advice told us we were in the right. They then screwed us over was the pebblecrete...

    My husband specifically asked the pebblecreter what product he was using and he told us the one we were expecting. Fast forward... not that product, different colour (actually no colour) pool. The waterline tiles are falling off and they are refusing to do anything about it. They kept giving us rubbish excuses about the concrete surround moving...blah blah blah...

    We are about to lodge with QBCC again as we never paid the final handover amount, so technically, apparently that means it has never been handed over. The pebblecreter is on record lying to us via sms and also with the pebblecrete company that they were supposed to use. He has given us every excuse under the sun as to why the right pebblecrete wasn't used and why he lied to us.

    The acid wash that was done on the pool once it was finished left the bottom streaky and he was supposed to return to empty and re-acid wash. Not sure where he was going to put that much water as he said he was going to let it out in the drain in the street.

    We are country and there are no drains, all he would do is flood the houses at the end of the cul-de-sac who are below street level. They pool company said they have done what was required as per the contract.

    Where they have us is that they omitted the brand of the pebblecrete. Where I have them is that all quote requests, emails requested Blue Glass Pebblecrete and additionally the contract states their colour which incidentally is trademarked to BGPC.

    If you Google what was written in the contract, it comes up with BGPC as the top result...one would reasonably expect that given that we would have their product...but no. I am willing to take this to QCAT but need to get my butt into gear. The pool company is dodgy as hell and apparently we aren't the only people they have done this to.

    I really hope you haven't used the same company as us...owner thinks he's smart but has no clue about contracts, so it seems.
     
  10. SarahD

    SarahD Member

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    Hi Michelle,

    Thanks for your reply. I suspect this is very common practice amongst pool builders.

    We are currently going through the QCAT process. It has been a time consuming, expensive experience.

    Our pool builder is experienced with QCAT, knows all the loopholes to drag it out and knows what QCAT can and cannot award for. Our SPASA contract is clearly in breach but QCAT does not have jurisdiction to award damages for breach of contract and unlikely to award expenses!

    SPASA insurance only covers our warranty if the director of the pool company declares bankruptcy or is deceased. No cover if they simply choose not to honour the warranty or complete the contract.

    Surely these guys need some accountability.
     

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